Can an Arkansas firefighter who retired and draws a pension still serve as Fire Chief without losing benefits?

Plain-English summary

Senator Eddie Cheatham described a scenario familiar to small Arkansas cities: a firefighter retired in 2014 and started drawing pension benefits. The city kept him on as a paramedic with firefighting duties, then in 2017 made him Fire Chief and EMS Director. The city said it paid him as EMS Director but he served as Fire Chief on a volunteer basis because of his retirement status.

Three questions came back. The AG declined two of them. Questions 1 and 3 turned on the federal Fair Labor Standards Act's volunteer rules at 29 U.S.C. § 203(e)(4)(A), which says a public employee cannot be a "volunteer" for the same agency to perform "the same type of services" they're employed to do. That federal question was outside the AG's office's authority.

Question 2 was a state law question: was it proper for this person to serve as Fire Chief while drawing his firefighter pension? The answer was governed by Ark. Code Ann. § 24-11-818(f). That statute lets a retired firefighter "remain actively involved" in the fire department without losing pension benefits, but only "provided the person does not receive compensation for the service provided." If the city was paying him for the chief role, his pension benefits would have to be suspended. If he was truly volunteering as Fire Chief while drawing his EMS Director compensation only for that role, the pension could continue.

The AG flagged a tension. The federal FLSA volunteer test says you cannot volunteer the "same type of services" you're already employed to perform for the same public agency. If a court or DOL applied that test to this firefighter (who served as both EMS Director and Fire Chief, with overlapping duties), the FLSA might require him to be paid as a Fire Chief. That would in turn trigger pension suspension under state law. But that's a federal-law question the AG could not answer.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Ark. Code Ann. § 24-11-818(f) is the key section. It carves out an exception to the general rule that pension benefits get suspended when a retiree returns to fire-department service. Subsection (f)(2) lets a retired firefighter "remain actively involved" in the department, and subsection (f)(3) protects pension benefits from suspension based on that involvement. The catch is in (f)(2): the person cannot "receive compensation for the service provided."

The statute's definition of "compensation" carves out two things that don't count: replacement of personal clothing or equipment destroyed during active service, and hospitalization insurance benefits. Anything else paid for the service triggers (f)(3)'s pension suspension.

A separate statute, Ark. Code Ann. § 24-11-827, addresses the alternative path: a retiree returning to compensated employment can keep working but cannot draw pension benefits during that period.

The federal FLSA volunteer rule at 29 U.S.C. § 203(e)(4)(A) and 29 C.F.R. § 553.101 sets up a four-part test for when public-agency volunteer service is genuine. One element is that "such services are not the same type of services which the individual is employed to perform for such public agency." Department of Labor regulations define "same type of services" as "similar or identical services." 29 C.F.R. § 553.103(a). If the federal test is failed, the worker is treated as an employee under the FLSA and must be compensated, which would in turn trigger Arkansas's pension suspension rule.

Common questions

Could a retired Arkansas firefighter serve as Fire Chief while drawing a pension?
Yes, under § 24-11-818(f), but only on a strictly volunteer basis. Any compensation for the chief role would suspend pension benefits.

What counts as "compensation" for this purpose?
Anything paid for the service, except for two narrow carve-outs: replacement of personal clothing or equipment destroyed in active service, and hospitalization insurance. A salary, hourly pay, stipend, or per-incident pay would all count as compensation.

Could the same person be paid for one role and volunteer for another?
The opinion didn't directly answer that, but flagged a federal-law concern. If the two roles overlap in actual duties (firefighter and EMS work, for instance), the FLSA's volunteer test might disqualify the volunteer arrangement and require pay for the second role too.

Does the federal FLSA volunteer rule control over Arkansas's pension statute?
They operate in different domains. The state statute decides whether a pension stays active. The FLSA decides whether the worker has to be paid in the first place. If the FLSA requires payment, that payment triggers state-law suspension.

What happens if a retiree returns to paid fire-department work?
Under Ark. Code Ann. § 24-11-827, the retiree could earn additional service credit (extending their eventual benefit), but pension benefits would not be paid during the period of compensated reemployment.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-087
November 15, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Eddie Cheatham
State Senator
2814 Ashley 239
Crossett, AR 71635-8824
Dear Senator Cheatham:

This is in response to your request for an opinion concerning a retired firefighter who reportedly is receiving benefits under the city's local pension fund while remaining active in the fire department as a volunteer. You pose the following questions, which I have paraphrased slightly:

1) If an individual's current duties involve the "same type of services" previously performed, does the individual qualify as a volunteer?
2) Would it be proper for the individual to serve as Fire Chief and EMS Director and draw a pension from the pension fund?
3) Would this be in conflict with 29 U.S.C. § 203(e)(4)(A), which concerns individuals who volunteer to perform services for public agencies?

As background for these questions, you state:

An individual retired from firefighting in 2014 and began drawing benefits from the city's firemen's pension trust fund. From April 2014 through January 2017, this retired individual was employed by the city reportedly as a paramedic, which included performing firefighter duties. In February 2017, this individual began to serve as Fire Chief and EMS Director. The city indicates he is compensated as the EMS Director and volunteers his time as Fire Chief due to his retirement status. Purportedly, he is performing the same duties as the previous Fire Chief and assumed more management and oversight of firefighting operations.

RESPONSE

Question 1 quotes and asks about the law cited in Question 3, which is a provision of the federal Fair Labor Standards Act (FLSA). The application of this federal law under any given set of facts is outside the scope of an opinion from this office. I consequently cannot specifically opine on Questions 1 and 3. My analysis must focus instead on Question 2.

This question is governed by Ark. Code Ann. § 24-11-818(f) (Repl. 2014). This state law allows a retired firefighter to "remain actively involved" in the fire department and to continue receiving his pension benefits, as long as he "does not receive compensation for the service provided." The answer to Question 2 thus depends upon whether the retired firefighter receives compensation for his service as Fire Chief.

DISCUSSION

As stated above, I cannot opine on your first and third questions because they turn on the specific application of the FLSA, which is a federal matter falling outside the scope of an Attorney General's opinion.

Your second question is governed by Ark. Code Ann. § 24-11-818(f), which is part of the state law concerning local police and fire pension funds. This statute allows a retired firefighter to "remain actively involved" in the fire department and continue to receive his pension benefits, under certain prescribed circumstances:

(2) Notwithstanding the provisions of subsection (a) of this section or any other law to the contrary, a person retired from the service of a fire department may remain actively involved in the fire department, provided the person does not receive compensation for the service provided.

(3) Service to a fire department under subdivision (f)(2) of this section shall not cause any suspension of retirement benefits payable under § 24-11-801 et seq., nor shall such service be interpreted by any board administering funds under this subchapter as a reinstatement of employment in a fire department.

A firefighter who has retired and is receiving a local pension may therefore return to fire department service and continue to receive pension benefits. But the retired firefighter cannot "receive compensation" for this continued service, and no additional service credit can be accumulated. If the retired firefighter is in fact compensated for the services he provides while remaining involved with the department, then such compensated service will "cause [a] suspension of retirement benefits ... ," in accordance with section 24-11-818(f)(3).

Thus, the answer to your second question depends upon whether the retired firefighter receives compensation for his service as Fire Chief. You state that the individual in question "volunteers his time as Fire Chief," which suggests that he is not compensated for that service. If that is the case, then this retired firefighter will satisfy section 24-11-818(f)'s requirement of uncompensated service and his pension benefits will continue.

Under the governing state law, there is cause for suspending benefits only if it is established that the retired firefighter receives compensation for his continued service to the fire department. This follows from the plain language of section 24-11-818(f)(2), where it provides that a retired firefighter "may remain actively involved in the fire department, provided [he] does not receive compensation for the service provided." (Emphasis added).

Sincerely,

LESLIE RUTLEDGE
Attorney General